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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10817
Experience:  I have been practising for 30 years.
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My friend accesses his house along a drive which borders his

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My friend accesses his house along a drive which borders his neighbour's property. The neighbour has erected a new fence which encroaches on the drive by several inches. The deeds to my friend's house show that actually the original boundary was over 18 inches from where the fence is now (although the latest fence was not in that position).
This has become a bitter dispute taking its toll on my friend's mental health. What would be your advice?

Hello for clarification - how long has your friend lived there? and the neighbour?

why did they renew the fence?

what have the neighbours said about this to your friend?

Customer: replied 3 months ago.
Thanks for your response. My friend has lived in his house for over 15 years. The neighbour moved in about 4 years ago. The fence was quite old and in need of replacement.
Customer: replied 3 months ago.
The neighbours reacted angrily when my friend questioned the position of the new fence. They appeared then to have agreed that he could pay to have it moved about 3-4 inches, but have since been silent about it. Obviously my friend would prefer the fence to be moved back to the line on the deeds.

Your friend is entitled to have the fence moved back to where it is on the deeds and if they won’t do it, he is entitled to apply to court for an injunction to make them do it and asked the court to award costs against them. You may find they are more receptive if a solicitor writes to them than if he does. If they won’t play ball, there is no way of dealing with this without it being coming confrontational.

He needs to check his house insurance to see if he has legal expenses cover that would pay for the legal cost. From what you have said, there is absolutely no reason why he should not get a court order/injunction and costs awarded against the neighbour and there’s no reason why it should be a dispute because it seems straightforward enough.

Can I clarify anything else for you?

I’m happy to answer any specific points arising from this.

Please take a moment to look at the top right hand corner of the page and rate my service by clicking one of the stars at the top of the screen. It’s important you use the rating service because that gives me credit. It doesn’t just give me a pat on the head! (Although there is an incentive scheme where the more five-star ratings I get, I do actually get a pat on the head! :-)) All you need to do is press Submit. Thank you.

If you still need any point clarifying, I will still reply because the thread does not close.

Best wishes.

FES.

Customer: replied 3 months ago.
Thanks for your answer. Can i just ask - is it becuase the original boundary is marked on the deeds that my friend is entitled to have the fence moved even though there has been a fence in the wrong place for some years before the current one was installed? Should he offer to pay to have the fence moved?

I don’t think you mentioned that the fence has been in the wrong place was some years.

It has been in the wrong place for more than 10 years and the property is registered the land registry, it is relatively easy for the neighbour to apply to have the “extra” piece of land registered in their name under the doctrine of adverse possession because they have used that extra piece of land and treated as their own.

If this fence is in the same position as the old fence and the old fence had been in place for more than 10 years, then if I were your friend, I would not be taking this any further.

Customer: replied 3 months ago.
The problem for my friend is that the fence runs along the edge of the drive which is the only access to his home. Does this have any bearing on his rights to have the fence moved? Although it wasn’t in the place marked on the deeds before it is now further onto the drive.

I don’t know why it’s now a problem but it hasn’t been a problem for some years. The fact that it may be alongside the edge of the drive makes no difference.

You say that it wasn’t in the place marked on the deeds but now it’s further onto the drive. If it is further onto the drive recently, you can apply to court to get it moved and if the neighbour objects, and tries to claim the extra piece of land they are going to have to prove how long the fence was in its long-term position.

Before you go (you can come back at any time), please don’t forget to use the rating service because that gives me credit. It doesn’t just give me a pat on the head! The thread remains open. We can still exchange emails.

Kind regards.

FES

Customer: replied 3 months ago.
Ok thanks. So I guess if the neighbour has agreed to move the fence back a few inches to its most recent position before the new fence that may be the best my friend can expect?

If it came down to an argument in court, they would be obliged to move the fence to the position it had been in for more than 10 years even if that’s the wrong place.

It seems, from what you have said, that the fence was in the wrong place for a long period of time and they replaced that fence recently and grabbed a tiny bit more land. It is that tiny bit more land they would have to give back.

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Customer: replied 3 months ago.
Thank you very much for your help. I will advise my friend accordingly. Mary